San Bernardino County Municipal Code Ch. 3 Smoking

The Board of Supervisors of the County of San Bernardino hereby finds and declares:

(a) Scientific studies have concluded that cigarette smoking causes chronic lung disease, coronary heart disease, stroke, cancer of the lungs, larynx, esophagus, mouth, and bladder, and contributes to cancer of the cervix, pancreas, and kidneys; and

(b) The use of cigars is known to cause lung, larynx, esophageal, and oral cancer; and

(c) More than 440,000 people die in the United States from tobacco-related disease every year, making it the nation’s leading cause of preventable illness; and

(d) The World Health Organization (WHO) estimates that by 2030, tobacco will account for ten million deaths per year, making it the greatest cause of death worldwide; and

(e) The United States Environmental Protection Agency (EPA) has found secondhand smoke to be a risk to public health, and has classified secondhand smoke as a group A carcinogen, the most dangerous class of carcinogen; and

(f) Exposure to secondhand smoke is the third leading cause of preventable death in this country, killing over 49,000 non-smokers each year, including an estimated 400 deaths from lung cancer; and

(g) It is estimated that 46,000 nonsmokers die of ischemic heart disease from secondhand smoke each year in the U.S.; and

(h) Secondhand smoke exposure adversely affects fetal growth with elevated risk of low birth weight, and increased risk of Sudden Infant Death Syndrome (SIDS) in infants of mothers who smoke; and

(i) Secondhand smoke exposure causes as many as 300,000 children in the United States to suffer from lower respiratory tract infections, such as pneumonia and bronchitis, exacerbates childhood asthma, and increases the risk of acute chronic middle ear infection in children; and

(j) The total cost of smoking in California was estimated to be $500.00 per resident or $3,400.00 per smoker per year, for a total of nearly $18.1 billion in smoking-related costs in 2004 alone; and

(k) Smoking-related health care costs in California in 2004 totaled $9.6 billion, an estimated 43 percent of which is paid for by public sources; and

(l) Almost 90 percent of adult smokers started smoking at or before age 18; and

(m) It is estimated that 13.8 percent of California high school students smoke; and

(n) The National Visible Litter Survey and Litter Cost Study conducted by Keep America Beautiful in 2009 found that tobacco products, primarily cigarette butts, comprised nearly 38% of all collected litter items from roadways and streets; and

(o) State law acknowledges the harms of exposure to secondhand smoke by prohibiting the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors; and

(p) With certain exceptions, State law prohibits smoking inside an enclosed place of employment; and

(q) State law prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees; and

(r) State law prohibits smoking in playgrounds and tot lots and within 20 feet of the main entrances and exits of public buildings while expressly authorizing local communities to enact additional restrictions; and

(s) It is the intent of the County Board of Supervisors in enacting the ordinance that adds this Chapter, to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of tobacco use around non-tobacco users; by protecting children from exposure to smoking and tobacco while they play; by reducing the potential for children to associate smoking and tobacco with a healthy lifestyle; by protecting the public from smoking and tobacco-related litter and pollution; and by affirming and promoting the family atmosphere of the County’s public places.

(Ord. 4212, passed - -2013)

For the purposes of this Chapter, the following definitions shall govern unless the context clearly requires otherwise:

BUSINESS. An employer, trust, firm, joint stock company, corporation, partnership, or association and also includes a business organized for profit and a nonprofit business, but does not include a sole proprietor.

COUNTY BUILDING. A building owned and occupied (in whole or in part) by the County, but only that portion of a building leased and occupied by the County, whether located in the unincorporated area of the County or an incorporated city.

EMPLOYEE. Any person who is hired by an employer in consideration for direct or indirect monetary wages or profit; or any person who volunteers his or her services for an employer.

EMPLOYER. Any person, partnership, corporation, association, nonprofit, volunteer or similar entity, including a municipal corporation or public entity, that employs or retains the service of one or more persons, or supervises volunteers.

ENCLOSED. Closed in by a full or partial roof and full or partial walls where a wall is any structure that impedes the free flow of outside air and may include a number of windows and doors.

HEALTH CARE FACILITY. An office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to hospitals, medical research and treatment sites, long-term health care facilities as defined in Health and Safety Code § 1418, clinics, including weight control clinics, nursing homes, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists and all specialists within these professions.

PLACE OF EMPLOYMENT. Any enclosed place, and the premises appurtenant thereto, where employment is carried on, including health care facilities.

SELF SERVICE DISPLAY. The open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer.

SMOKING. Inhaling into the mouth or lungs the smoke or vapor from, or the possession of, a lighted pipe, lighted cigar, lighted cigarette, an activated electronic cigarette or other similar electronic device, whether or not such electronic device delivers nicotine, or any other lighted smoking equipment. Smoking includes, but is not limited to, smoking tobacco, marijuana, any other plant or plant derivative, and synthetic substances.

SPORTS COMPLEX. Any sport pavilion, arena, stadium, gymnasium, health spa, boxing arena, swimming pool, roller or ice rink, bowling alley, or similar place specifically designed to be used for physical exercise or athletic competition.

SPORTS COMPLEX SEATING AREA. Any spectator seating area, including outdoor athletic recreation bleachers or similar area used for the viewing of sports and athletic competition.

TOBACCO PARAPHERNALIA. Cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of tobacco products.

TOBACCO PRODUCT. Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco.

VENDING MACHINE. A machine, appliance, or other mechanical device operated by currency, token, debit card, or credit card that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

VENDOR ASSISTED SALES. Sales in which only a store or tobacco retailer employee has access to the tobacco product and supplies the customer the tobacco product in such way that the customer does not take possession of the tobacco product until it is purchased.

(Ord. 4212, passed - -2013)

(a) Enclosed Places of Employment. Smoking shall be prohibited in all enclosed places of employment within the unincorporated area of the County of San Bernardino, except in places listed in Subdivision (b) below, and except in such places in which smoking is already prohibited by State or Federal law, in which case the State or Federal law applies.

(b) Unless otherwise prohibited by law, enclosed places of employment shall not include:

(1) Private residential units, except those meeting the definition of “enclosed” in this Chapter when serving as a licensed child care facility, a licensed home for the aging or a licensed home for the chronically ill;

(2) Up to 25 percent of hotel and motel guest rooms, if the hotel or motel permanently designates particular guest rooms as non-smoking rooms such that 75 percent or more of its guest rooms are non-smoking and ashtrays and matches are permanently removed from such non-smoking rooms; and

(3) Retail stores that deal exclusively in the sale of tobacco products and tobacco paraphernalia and in which minors are never permitted to enter.

(Ord. 4212, passed - -2013)

(a) Smoking shall be prohibited in the following areas, within the County, except in such places in which smoking is already prohibited by State or Federal law, in which case the State or Federal law applies:

(1) By employees and members of the public in any County building;

(2) Within 20 feet of a main entrance, exit, operable windows or ventilation ducts of a County building;

(3) In a passenger vehicle owned or leased by the County;

(4) Ticket, boarding and waiting areas of public transit depots under the authority of the County;

(5) Sports complex seating areas under the authority of the County; and

(6) All means of public transit under the authority of the County, while within the boundaries of the County.

(b) The prohibition in Subdivision (a) does not apply to County buildings that are used as residences by out-stationed County employees.

(c) Notwithstanding any other provision of this Chapter, smoking is prohibited within any area of the Arrowhead Regional Medical Center Campus (“ARMC”), whether inside or outside of the buildings, including parking lots, sidewalks, streets, and driveways, located with the ARMC Campus. This Subdivision (c) shall not apply to ARMC offsite family health centers.

(Ord. 4212, passed - -2013; Am. Ord. 4260, passed - -2014)

Smoking shall be prohibited in the following areas, within the unincorporated area of the County, except in such places in which smoking is already prohibited by State or Federal law, in which case the State or Federal law applies:

(a) Sports complex seating areas; and

(b) Ticket, boarding and waiting areas of public transit depots; and

(c) All means of public transit within the boundaries of the County.

(Ord. 4212, passed - -2013)

No person shall dispose of waste (including ashes) from smoking within the boundaries of an area in which smoking is prohibited, including inside the perimeter of any entranceway, doorway, operable window or ventilation duct where smoking is prohibited.

(Ord. 4212, passed - -2013)

(a) It shall be unlawful for any employer or business to fail to comply with the applicable provisions of this Chapter.

(b) No employer or business owner shall knowingly permit smoking in an area which is under the legal or de facto control of the employer or business owner and in which smoking is prohibited by this Chapter and the employer and business owner is not otherwise compelled to act under State or Federal law.

(c) No employer or business owner shall knowingly or intentionally permit the presence or placement of smoking waste or ash receptacles, such as, for example, ash trays or ash cans, within an area which is under the legal or de facto control of the employer or business owner and in which smoking is prohibited.

(d) Notwithstanding any other provision of this Chapter, any employer or business owner who controls any property, establishment, or place of employment regulated by this Chapter may declare any part of such area in which smoking would otherwise be permitted to be a non-smoking area.

(e) No employer or prospective employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant for employment exercises any rights afforded by this Section.

(f) “No smoking” or “Smoke Free” signs, with letters of no less than one inch in height or the international “No smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly, sufficiently and conspicuously posted in every enclosed and unenclosed place in which smoking is prohibited by this Section, by the person, employer or business that has legal or de facto control of such place. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this Chapter.

(Ord. 4212, passed - -2013)

(a) Except for retail stores that deal exclusively in the sale of tobacco products and tobacco paraphernalia, and in which minors are never permitted to enter, it shall be unlawful for any person or business to sell, dispense, permit to be sold or offer for sale any tobacco product or electronic cigarette by means other than vendor assisted sales, including the selling, offering for sale, dispensing and displaying of any tobacco product or electronic cigarette by self-service displays.

(b) Self-service displays prohibited by this Section in place as of the date the ordinance adopting this Section is approved shall be removed not later than one year after the effective date of this ordinance.

(c) It shall be unlawful for any person, business, or tobacco retailer to locate, install, keep, maintain, use or permit the location, installation, keeping, maintenance or use of a vending machine for the purpose of selling or distributing any tobacco product, tobacco paraphernalia, electronic cigarette or other similar electronic device.

(Ord. 4212, passed - -2013)

(a) Violations of this Chapter shall be prosecuted as infractions and shall be punished by a fine of not exceeding $100.00 for a first violation, $200.00 for a second violation occurring within one year, and $500.00 for a third or subsequent violation occurring within one year.

(b) A violation of any of the provisions of this Chapter shall constitute a public nuisance and may be abated by the County or by an affected employee or resident of the County through the use of administrative citations or civil processes by means of a restraining order, preliminary or permanent injunction or in any other manner provided by law for the abatement of such nuisance.

(c) All remedies and penalties provided in this Chapter shall be cumulative and discretionary and not exclusive of other applicable provisions in this Chapter, this Code or other applicable State or Federal law.

(d) Enforcement of this Chapter shall be the responsibility of the County Health Officer or his or her designees. Any peace officer or code enforcement official also may enforce this Chapter.

(e) Any person who desires to register a complaint hereunder may initiate enforcement consideration with the County Health Officer or his or her designee.

(Ord. 4212, passed - -2013)

This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable law or regulations of property owners, managers or employers.

(Ord. 4212, passed - -2013)